DELEGATION OF POWERS

DELEGATION OF POWERS refers to the practice of empowering one part of government to act in the name of another. The extent to which any branch of government may delegate power, however, remains in question. For example, the courts have often said that Congress as a recipient of delegated power from the people through the Constitution may not further delegate its legislative powers to other agencies of government. At the same time they have admitted that Congress can adopt only a general policy, which must be implemented by others in unanticipated circumstances and contexts. The U.S. Supreme Court stated in 1940 that "delegation by Congress has long been recognized as necessary in order that the exertion of legislative power does not become a futility," and the Court has voided only three delegations of power by Congress: Panama Refining Company v. Ryan (1935), Schechter Poultry Company v. United States (1935), Carter v. Carter Coal Company (1936).

Three types of delegation can be identified. The first leaves to a person or agency the task of filling in the details and elaborating on the implementation of general policy. This, the most common type of delegation, is exemplified in the INTERSTATE COMMERCE COMMISSION being directed to ensure that railroad rates are "reasonable." A second type is contingency delegation. In this type, legislation is passed that will go into effect or be suspended when the executive branch determines that a specified situation exists. Tariff laws, for example, usually give the president power to change duties if other countries make specified changes in their duties. The third type of delegation of power occurs in the field of foreign affairs, where courts have approved broader delegations of power to the president than in domestic affairs because of the unique role he plays in this area.

Limits do exist on the ability of Congress to delegate legislative power to administrative agencies. Congress must define the subject to be regulated and must provide some standard to guide its agent's actions, even if that standard is no more exact than "just and reasonable." The delegation must be to public officials, not to private groups or individuals. Penal sanctions for violation of administrative orders can be provided only by Congress.

Strict judicial adherence to the nondelegation doctrine would have made virtually impossible congressional exercise of the powers conferred on the legislative branch by the Constitution. Judicial recognition of this fact contributed to the great growth of administrative agencies and independent regulatory commissions in the twentieth century.

BIBLIOGRAPHY

Barber, Sotorios A. The Constitution and the Delegation of Congressional Power. Chicago: University of Chicago Press, 1975.

Fitz Gerald, John L. Congress and the Separation of Powers. New York: Praeger, 1986.

Robert H. Birkby/ A. G.

See also Cabinet; Carter v. Carter Coal Company; Checks and Balances; Civil Service; Congress, United States; Panama Refining Company v. Ryan; Schechter Poultry Company v. United States; Separation of Powers.